Ken Starr Would Not Be Denied

By Michael Winerip

Published: September 6, 1998

When Kenneth Starr was chosen to investigate Whitewater in 1994, the White House counsel, Abner Mikva, assured the Clintons that this was a fine selection. Mikva and Starr had known each other for years. During the 1980's, the two men served together on the Federal Appeals Court in Washington, and though they were on opposite ends of the political spectrum, the liberal Mikva and the conservative Starr were friends. Mikva and Starr socialized at each other's homes, dined out together with their wives. When Mikva thought of Starr, words like ''ethical,'' ''fair,'' ''decent'' came to mind. If Mikva saw a fault in the younger judge, it was that Starr was a little too much of an egghead, too pedantic, just not street-smart. This was brought home to Mikva one day during a near fistfight at the Federal courthouse. Starr, Mikva and Laurence Silberman were on a three-judge panel and, when they retired to the conference room, it turned out that Silberman was furious with Mikva over the case they had just heard. ''Silberman said to me, 'If you were 10 years younger, I'd punch you out!' '' Mikva recalls. ''I look over, and there was Ken, looking at the ceiling, wishing he was not there. He never said a word. I attributed it to the gentle son of a minister who didn't like controversy.''

And so, in August 1994, Mikva assured the Clintons: ''Ken and I had good relations on the court and I'm sure it will continue.''

Twice during 1995, Starr wanted to question both the President and the First Lady in connection with the Arkansas inquiries, and each time arranged it with Mikva. ''The milieu could not have been more pleasant or cooperative,'' Mikva says. ''Upstairs in the White House residence, both times on a Saturday. He arrived discreetly through the back entrance. He later issued a short statement. There was no commenting or leaking to the press.'' Mikva walked Starr out after one session and thanked him. ''I said: 'I realize it was not done for this President. I appreciate your concern for the Presidency.' He said: 'I would not have it any other way. The Republicans will elect a President again and I want the Presidency to be there.' ''

Starr was considered too bland in those days to have political enemies, and if he did, they would probably have been conservative Republicans. In 1981, as an aide to Attorney General William French Smith, Starr shepherded Sandra Day O'Connor's Supreme Court nomination through the Senate and was attacked by conservatives for having covered up O'Connor's pro-choice views. After President Bush appointed him Solicitor General in 1989, Starr showed his independence on his first controversial case, defying the President by siding with a group of whistle-blowers against defense contractors.

Even after Starr took a million-dollar-a-year corporate law job at Kirkland & Ellis in 1993, he was viewed by the Washington establishment as the perfect man for handling delicate public matters. When the Congressional committee investigating sexual-harassment charges against Senator Bob Packwood needed someone to review the most intimate secrets in Packwood's diaries, Starr was hired. His law partners watched him rushing about, installing a lock on his door, setting aside a special table as the only place the diaries could be reviewed and declaring that only the office administrator could carry the diaries in and out of a special vault.

In October 1995, Mikva left the White House, still on good terms with Starr. But what happened a few months later radically changed Mikva's feelings and embarrassed him in front of the Clintons, who were by then referring to the independent counsel as ''your friend Ken Starr.''

''I was shocked when Mrs. Clinton was called before the grand jury and he made her go to the courthouse,'' Mikva says. ''He could have taken her testimony under oath at the White House. He knew there was no back stairway at that courthouse, that she'd have to walk right in front of the barrage of cameras. Ken knew that courthouse better than anyone. When he and I were on the bench there in the 1980's, there was a U.S. Attorney, Jay Stephens, who constantly used the press -- he'd call press conferences in front of the courthouse to announce an indictment and then haul in the defendant in front of the cameras. Ken and I used to stand together at an upstairs window looking down. We agreed that using the press as a prosecutorial tool was not something an ethical prosecutor did.

''The Judge Starr I knew was cautious, deliberate, careful, not zealous and reckless. The Ken Starr I see now is not the Ken Starr I knew.''

Is it true? Is there really a new Ken Starr? Rusty Hardin thinks so too, although he draws a very different conclusion. Hardin, a lawyer in the independent counsel's office at the start of the Whitewater investigation, says that Starr needed to learn to think like a prosecutor. He had never been one, had never even been a trial lawyer, had spent his career in the high-altitude world of appellate law. ''Appellate lawyers don't stand up before the Court of Appeals and call each other [expletive] -- they don't question each other's motives,'' Hardin says. ''Prosecutors live with that.'' The reserved Starr drove his assistant prosecutors mad, endlessly weighing and deliberating every matter. ''Starr was more concerned with what people thought of him,'' Hardin says. ''But the more the White House stonewalled, the more he hunkered down.''